Some Leading Cases on Public Body Liability in Tort

2. Some Leading Cases on Public Body Liability in Tort Stephen Todd

3. Duty in public law? A-G v Body Corporate No 200200 (CA, 2007) per William Young J at [48]-[49] The public law approach is problematical. It would introduce into the law of negligence public law principles which have been developed for different purposes… On this point we respectfully adopt the approach taken by McHugh J in Crimmins v Stevedoring Industry Finance Committee.

4. Duty in public law? Crimmins v Stevedoring Industry Finance Committee (HCA, 1999) McHugh J - public law concepts of duty and private law concepts of duty are informed by different rationales. The negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires.

5. Duty in private law Basis for common law duty • A justiciable issue? • A duty to act? • A duty which operates consistently with the common law and statutory context?

6. Justiciability Takaro Properties Ltd v Rowling (PC, 1987) per Lord Keith - The distinction between policy and operation is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that the question whether it has been made negligently is unsuitable for judicial resolution.

7. Justiciability Barrett v Enfield BC (HL, 2001) per Lord Slynn, Lord Hutton The ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no part to play. Whether an authority acts within its discretion and the policy/operational distinction are guides in deciding that question.

8. Political decisions Graham Barclay Oysters v Ryan (HCA, 2003) per Gleeson CJ Decisions as to raising revenue and setting priorities in the allocation of public funds between competing claims on scarce resources were essentially political. So were decisions about the extent of government regulation of private and commercial behaviour that was proper. Courts had long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of government conduct where such complaints were political in nature.

9. Omissions by public bodies: Basis for duties to act? • Proximity between the defendant public body and the claimant • Creating source of danger, conduct inducing reliance, control over persons or property, assumption of a responsibility to act

10. Proximity Fleming v Securities Commission (CA, 1995) per Richardson J Securities Commission was not intended to be an omniscient and omnipotent guarantor of investors, but rather a supervisory agency with a limited role, not appropriate to the imposition of specific duties of care to all members of the investing public. Attorney-General v Body Corporate No 200200 (CA, 2007) – no duty owed to house owners by national building industry regulator to warn about or prevent poor building practices by builders

11. Reliance, control, assumption of responsibility • Invercargill CC v Hamlin (PC, 1996) - Duty owed by building inspector to protect house owners • Home Office v Dorset Yacht Co (HL, 1970) – Prison authority under duty to prevent prisoners causing harm to plaintiff • Reeves Commissioner of Police (HL, 2000) – Police owed duty to protect prisoner in custody • Stuart v Kirkland-Veenstra (HCA, 2009) – Police under no duty to apprehend person who had been contemplating suicide

12. Consistency with common law and statutory context B v A-G (PC, 2004) Duty by social workers investigating allegations of abuse owed to child but not to the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims were poles apart.

13. Consistency with common law and statutory context D v East Berks (HL, 2005) Lord Nicholls - Health professionals should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken

14. The probation service Couch v Attorney-General (SC 2008) –Duty owed by probation service for deficient supervision of criminal on parole? • Blanchard, Tipping and McGrath JJ – The law has traditionally been cautious about imposing duties of care in cases of omission, in cases where a public body was acting for the benefit of the community at large, and in cases where the actions of a third party were the immediate cause of loss. • Duty here was arguable.

15. The probation service • Elias CJ and Anderson J – The authorities did not compel the view that duties of care could be owed only to those who were members of a limited class. It was in the nature of public functions that those foreseeably at risk if statutory responsibilities were discharged negligently would be a wide class, perhaps as wide as the general public if the responsibilities were imposed for public protection and if the risk warranted it.

16. The police Smith v Chief Constable of Sussex (HL, 2008) – Duty on police to protect victim after threats from estranged partner? • Lord Bingham (dissenting) - If a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known has presented a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it from being exercised.

17. The police • Lord Hope - The core principle of Hill — that the police owe no common law duty to protect individuals against harm caused by criminals — should apply. The principle is justified by the interests of the whole community, the greater public good outweighing any individual hardship. A robust approach in assessing a person as a possible suspect or victim is needed, and making that judgment in any given case should be a matter for the police.

18. Local authority landlord Mitchell v Glasgow CC (HL, 2009) – Duty owed by local authority landlord to tenant to warn of danger of violence by another tenant? • Lord Hope – No general duty on person to protect others from being harmed by the criminal acts of a third party • A duty may exist where defendant (i) creates source of danger, (ii) exercises control over another, or (iii) has assumed a responsibility to the plaintiff. But no assumption here.

19. Local authority landlord • Lord Hope - The implications of a duty to warn are complex and far-reaching. The defenders would have to determine, step by step at each stage, whether or not the actions they proposed to take in fulfilment of their responsibilities as landlords required a warning to be given, and to whom. The more attentive they were to their ordinary duties as landlords, the more onerous the duty would become.

20. Local authority landlord • Baroness Hale – It is not fair, just and reasonable to impose a duty in a case such as this, where perfectly proper actions are taken for the general good of the community but may provoke another to commit a criminal act • The defendant’s anti-social tenants are presumed to be grown-ups with minds of their own who can make their own choices about how to behave.

21. Registration authority for nursing homes Jain v Trent Strategic HA (HL, 2009) – Duty owed by registration authority to owners of nursing home? • Lord Scott - Where action is taken by a state authority under statutory powers designed for the benefit of a particular class of persons, a duty of care will not be held to be owed to others where such a duty would or might be potentially adverse to the interests of that class. • Purpose of relevant statutory powers was to protect the interests of residents in nursing homes, not the economic interests of owners.

22. Registration authority for nursing homes • No duty to an opposing party could arise in the conduct of, or the steps taken in preparation for, judicial proceedings before a court or tribunal. • Protection of parties to litigation from damage caused by the litigation had to depend on the control exercised by the court and the rules and procedures under which the litigation was conducted.